Effective opening statements in American trial…

Document Sample
Effective opening statements in American trial… Powered By Docstoc
					                                                                                                                                        FORUM



                                                                         Effective opening
                                                                             statements in
                                                                             American trial
                                                                                   practice:
                                                                                            Part 2 – Organisation



                                                                                                    It usually takes more than three weeks to
                                                                                                         prepare a good impromptu speech.

                                                                                                                                    - Mark Twain



                             Willem H Gravett,
                             New York State Bar




Use the evidence – don’t just                    portive of the theory of the case.                   of the case. Your theory will seldom depend
                                                                                                      upon which witness provides a particular
display it                                          Avoid witness summaries. It remains
                                                 a mystery why many trial lawyers think that          piece of information. Rather, the theory will


T
                                                                                                      always depend upon how the various facts
    he goal is to organise your                  they can help the fact-finder understand the
                                                 case by naming the witnesses and outlining           fit together.
    opening statement so that                                                                             Be wary of chronology. Chronology
                                                 the expected testimony of each (the so-called
it has maximum persuasive                        ‘witness-by-witness’ approach).                      is an obvious way to organise an opening
impact. There is a world of                          The very purpose of the opening state-           statement. After all, events in the real world
                                                 ment is to overcome the disjointed fashion           occur in chronological order.
difference between using the
                                                 in which the witnesses will produce evidence             However, simply because events occurred
evidence, and merely displaying                                                                       in a certain order is not a sufficient reason
                                                 at trial. Witness-by-witness rendition of the
it.                                              facts is not likely to produce a coherent story.     to present them that way to a fact-finder.
   Unprepared and disorganised trial lawyers                                                          By lashing you to the mast of events as they
                                                    The Court will hear a number of witnesses
are attracted by the allure of some seem-                                                             happened, chronology may very well prevent
                                                 testify in this case.
ingly ‘natural’ methods of organising their                                                           you from organising the facts in their most
                                                    The plaintiff will testify that . . .
opening statement, such as chronology or                                                              persuasive order.
                                                    Then John Dunn, a firefighter will tell you
witness summaries. They allow the accident                                                               For example, the following are the first
                                                 that . . .                                           three paragraphs from the lead article of the
of witness observation or the serendipitous
occurrence of events to replace dynamic              You will also hear from Amy Lipton. She          New York Daily Tribune of April 15, 1865:
organisation and attention to the theory of      will testify that . . .                                  President Lincoln and his wife,
the case. This approach often amounts to            Interesting? No. Persuasive? Absolutely           together with other friends, this evening
nothing more than displaying the evidence.       not. The opening statement quickly becomes           visited Ford’s Theatre, for the purpose
   Effective trial lawyers, on the other hand,   boring and difficult to follow.                      of witnessing the performance of the
use the evidence in opening statement.              An even greater problem with the wit-             ‘American Cousin.’
Using the evidence involves the purposeful       ness-by-witness approach is that it obstructs          It was announced in the papers that
ordering of the facts in a manner most sup-      the trial lawyer’s ability to develop a theory       General Grant would also be present, but

                                                                                                                       advocate   August 2009     45
FORUM

he took the late train for New Jersey.              more persuasive through the addition of sup-          The parties and witnesses. Introduce
    The theater was densely crowded, and            porting details:                                   the essential people, both the parties and key
everybody seemed delighted with the                    • The fire engine was responding to a call;     witnesses. Describe your witnesses in such a
scene. During the third act, and while                 •There is a departmental policy to use the      way that will make their story understand-
there was a temporary pause for one of                  siren whenever responding to a call;           able and their testimony credible.
the actors to enter, a sharp report of a               • The driver of the fire engine was an             You should remind the fact-finder that
pistol was heard, which merely attracted                                                               the case involves people, and not merely
                                                         experienced firefighter, well aware of
attention, but suggested nothing serious,                                                              abstract legal problems. The more your client
                                                         the policy;
until a man rushed to the front of the                                                                 and critical witnesses are humanised, the
                                                       • Other motorists stopped their cars.
President’s box, waiving a long dagger                                                                 more likely it will be that the fact-finder will
in his hand, and exclaiming ‘Sic semper                The details have little meaning when
                                                    offered on their own. They become impor-           perceive them as believable. For example:
tyrannis!’ and immediately leaped from
                                                    tant only in light of the pivotal issue on             This is John Smith. John is an accoun-
the box, which was on the second tier, to
                                                    which they are offered.                            tant. He had worked as an accountant at
the stage beneath, and ran across to the
                                                        2 Weave in the witnesses. While the            Acme Corporation for 15 years, supporting
opposite side, making his escape amid
the bewilderment of the audience, from              witness-by-witness approach will not result        his wife and three children. John had risen
the rear of the theater, and mounting a             in a persuasive opening statement, this does       through the ranks at Acme to become Chief
horse, fled. The screams of Mrs. Lincoln            not mean that you should not mention               Accountant. He has lived in our community
first disclosed the fact to the audience            individual witnesses in the course of your         all his life.
that the President had been shot.                   opening. Actually, it is important to let the         Before April 25th of last year, John Smith
   You did not have to be a seasoned jour-          fact-finder know the source of a specific fact.    was a completely healthy man. He was
nalist to have realised at the time that the        The key is to weave the information about          physically active. He did all the work around
assassination of President Lincoln would be a       the witness into the narrative so that the wit-    the house – he even built an addition a few
pivotal moment in American history. Surely,         ness references arise in the context of your       years ago when his little girl was born. He
there could be no more captivating fact with        theory of the case.                                enjoyed playing tennis, hiking and camping
which to lead the story:                                Take, for example, our fire engine             with his family and friends. He never had any
   As Mrs. Lincoln’s screams rang out,              example. The plaintiff says there was a            problems with his back or legs.
everyone realised that the President                siren; the defendant says there was not. The           Action and key events. It is critical to
had been shot! Moments before, a man                plaintiff can bolster her position by weaving      use the opening statement to begin to paint
rushed to the front of the President’s Box          in witness information when her opening
                                                                                                       a picture of the events in a way that helps
in Ford’s Theatre . . .                             statement narrative reaches the siren issue:
                                                                                                       the fact-finder to visualise the case from your
     As you can see from this example, a                Just as she approached the intersec-           client’s perspective.
strict chronological organisation may clutter       tion, Janet [the plaintiff] saw and heard an
                                                                                                          To do this effectively, you must first have
your story with useless and confusing detail.       approaching fire engine. It was sounding its
                                                                                                       created your own mental image consistent
Do not make the fact-finder wade through            siren and flashing its lights. We know that
                                                                                                       with the testimony to be given later by your
inconsequential details before you get to the       the siren was operating because Lieutenant
                                                                                                       own witnesses. The importance of prepara-
point.                                              Jim Dunn, the driver of the fire engine, will
                                                                                                       tion cannot be overemphasised. You must
    Using details persuasively. Using - as          testify that he always sounds the siren when
                                                                                                       know precisely how, and in what terms, your
opposed to merely displaying - the evidence         he is answering a call. That is fire department
                                                                                                       witnesses will relate each incident.
in your opening statement depends upon the          policy and Lieutenant Dunn is a decorated
                                                    firefighter who has been with the depart-             In describing events, nouns and verbs
persuasive arrangement of major proposi-
                                                    ment for over ten years. Lieutenant Dunn will      are much more helpful than adjectives and
tions and supporting detail.
                                                    testify that he is certain that he was doing       adverbs. This may seem counter-intuitive,
   1 Big ideas, then details. It is usually most
                                                    his official duty – using all audio and visual     since we commonly think of modifiers as
effective to organise your opening statement
                                                    alarms on the day of the crash.                    adding descriptive depth. Consider, however,
as a series of big ideas, each of which is
                                                        The information about Lieutenant Dunn          which of the following accounts is more
immediately supported by persuasive sup-
                                                    neither stands alone as an isolated descrip-       evocative of the crime:
porting details.
                                                    tion of the witness, nor does it interfere with      Example 1 – Maximum use of adverbs
   The fact-finder will resolve the case on the
                                                    the flow of the narrative. Rather, it adds         and adjectives:
basis of certain pivotal issues. Marshall details
                                                    support to the plaintiff’s theory at the precise      It was a heinous, horrible crime. The
to make your version of these pivotal issues
                                                    moment when the fact-finder will most read-        defendant’s actions were awful and inhu-
more persuasive.
                                                    ily appreciate such support.                       man. He brutally grabbed at the victim’s
    Assume, for the sake if illustration, that
                                                                                                       gold chain, fiercely pulling it away. He left an
a major issue in an automobile collision case       The operative facts
is whether a fire engine sounded its siren                                                             ugly bruise on the victim’s neck. Unsatisfied
immediately before the accident. If the fact-           The most important part of any opening         with the proceeds of the armed robbery, the
finder determines there was a siren, a verdict      statement is its treatment of the operative        defendant then coldly and wantonly stabbed
for the plaintiff is more likely; if there was      facts. Facts win lawsuits. Everything else         the victim twice, leaving his jacket lying in a
no siren, the defendant has a better chance.        - organisation, presentation, theme develop-       bloody heap. It was indeed a cowardly act,
Thus, the siren is a pivotal issue in the trial.    ment - is only an aid in communicating the         taken against a defenseless victim.
   The plaintiff’s position could be made           facts of the case.                                     Example 2 – Virtually no modifiers:

46    advocate   August 2009
   The defendant placed the knife against            Street has no parking lanes. It too is lined        cannot be done if you merely explain why
the victim’s body. Without waiting, he               with commercial buildings. Consequently, as         your client is right; this can only be done
grabbed the gold chain from the victim’s             you drive down Main Street you cannot see           if you explain the righteousness of your
neck and twisted it until it snapped, leaving        the traffic coming down Clark Street until          interpretation of the contract. Why were the
bruises on the victim’s neck that did not heal       you are literally in the intersection itself.       particular terms so important? Why was your
for over a week. Although he had already                 Setting the scene involves describing a         client’s reliance on the other party’s word
taken what he wanted, he pushed the knife            potentially unlimited number of details. The        justified?
into the victim’s shoulder, turning as he            key is to dwell only on those details that are
                                                                                                            Motives and motivations. As we have
pushed, and watched the blood well to the            significant to your case while avoiding those
                                                                                                         seen, stories are more persuasive when they
surface. Then he stabbed the victim again,           that are merely clutter.
                                                                                                         are told about people who have reasons for
until the blood soaked the jacket all the way           It is often difficult to visualise references    the way they act. An opening statement
through.                                             to compass directions, degrees, or angles in
                                                                                                         should always attempt to stress the motiva-
   Example 2 is more vivid, because it               the abstract. Therefore, in setting the scene,
                                                                                                         tions for the parties’ actions.
describes the action as it happened. By con-         a diagram, enlarged photograph or other
trast, Example 1 actually obscures the action                                                               The activity that you describe will be that
                                                     exhibit can be enormously helpful to aid the
by substituting value-laden modifiers for an         fact-finder.                                        much more believable if, at the same time,
account of the events themselves.                                                                        you are also able to explain why the people
                                                        In cases where the date and precise time
                                                                                                         involved acted as they did.
    Modifiers frequently stand for judgments         of an event are important, or the weather
rather than for descriptions. Words like             and lighting conditions are significant,               However, the opening statement is not
‘heinous,’ ‘brutal,’ and ‘awful,’ or ‘lovely,’       describe them in detail:                            the time to speculate about a person’s
‘wonderful,’ and ‘grand’ may convey the                  The robbery happened at 11:30 at night          secret motives. The opening statement must
trial lawyer’s opinion about something, but          on August 31st. Although it was nighttime,          develop motive in the same way that it treats
they do no depict a vision of the events             the intersection was well lit. There is a street-   everything else - through the preview of
themselves.                                          light directly over the spot where Mr. Jones        evidentiary facts.
   An effective description of the actions           was beaten, kicked in the head, and then
and key events includes statements that are          robbed. There are other streetlights further        End with a bang!
objectively accurate, complete, and believ-          down the street in each direction, on both
                                                                                                            The ending – the last minute of your
able. A description that is too abstract, too        sides of the street. The storefronts that line
                                                                                                         opening statement – must accomplish several
subjectively biased, or incomplete will not be       the streets provide even more lighting.
                                                                                                         things quickly:
persuasive.                                              Transactions and agreements. Most
                                                                                                            • Repeat the themes one last time.
   The physical scene. The physical details          commercial cases involve written and oral
of a particular setting may affect things such       communications far more than they do physi-            • Summarise the basis for liability or non-
as probability, credibility, and visibility. It is   cal occurrences. These ‘non-physical’ events             liability, guilt or innocence, by tying the
important to use your opening statement to           can be more difficult to describe during                 key facts to the key themes.
set the scene for major events.                      opening statement, since there is little or no         • Tell the fact-finder what you want her to
   Describe the scene so that the fact-finder        activity to depict.                                      do through the verdict.
can visualise it. The objective is to develop            Nonetheless, if the case turns on the              • Motivate the fact-finder to see that an
verbal pictures so that when you close your          interpretation of a contract or the mean-                injustice is righted and fairness is served.
eyes and listen to the description, you should       ing of a series of telephone calls, you must
                                                                                                            For example:
actually be able to form a mental picture of         search for a way to bring the transaction to
                                                                                                            We are asking this Court to tell the
the scene described.                                 life.
                                                                                                         defendant that two years of denial is
    Clarity is critical. If the fact-finder cannot      The surest way not to bring a business
                                                                                                         enough; that two years of failing to take
visualise what you are describing, the rest          transaction to life is to parse it out in minute
                                                                                                         responsibility for what their negligence
of your opening statement will not be as             chronological detail.
                                                                                                         did to Karen Adams is enough. At the
persuasive. Give one fact at a time, allowing           It is generally much better to start at the
                                                                                                         end of this trial, we will ask this Court
the fact-finder to absorb it and to add it to        end. Explain the gist of the agreement, and
                                                                                                         to find that the defendant’s negligence
the developing mental picture in her mind.           then go back to fill in only those details that
                                                     are necessary to support your interpretation.       caused Karen’s injuries and damages. We
For example:
                                                                                                         will ask this Court to find that plaintiff
     The collision occurred at the intersection          The effective trial lawyer knows, however,
                                                                                                         has proven damages in the amount of
of Main Street and Clark Street. Picture a car       that it is not enough to simply recite the
                                                                                                         R[_____]. We will ask this Court to do
traveling south on Main Street towards Clark         terms of the agreement, and then to point
                                                     out that it was either kept or broken. While        what only it has the power to do: return
Street. Main Street is a two-lane street. There
                                                     such an approach may, in the driest sense,          to Karen some semblance of all that the
are parking lanes on both sides that are
filled. On both sides of Main Street near the        convey your theory, it will not add anything        defendant took away.
intersection with Clark Street there are com-        to the moral weight of your case.                      In the last article in this series, we will
mercial buildings approximately three stories           Recall that your trial theme is intended         look at some strategic considerations and
high. Clark Street intersects at right angles        to provide the fact-finder with a reason for        discuss effective delivery of the opening
with Main Street. It is a four-lane street. Clark    wanting to rule in your client’s favor. This        statement.

                                                                                                                           advocate    August 2009        47